Budlong & Budlong, LLC v. Zakko ( 2022 )

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BUDLONG & BUDLONG, LLC v. ANGHAM ZAKKO
(AC 44374)
Cradle, Clark and Bishop, Js.
Syllabus
The plaintiff law firm sought to recover damages from the defendant for,
inter alia, breach of contract in connection with its representation of
the defendant. The matter was referred to an attorney fact finder, who
filed a report recommending judgment for the plaintiff on the complaint.
The trial court overruled the defendant’s objection to the report of the
attorney fact finder and rendered judgment in accordance with it. Two
exhibits, a retainer agreement and a bill for services, were considered
by the attorney fact finder, but were not reviewed by the court, as they
were reported missing from the clerk’s office. The defendant appealed
to this court, claiming that the court improperly overruled her objection
to the attorney fact finder’s report and improperly rendered judgment
in accordance with the attorney fact finder’s report because the report
contained insufficient factual findings. Held:
1. The trial court improperly overruled the defendant’s objection to the
attorney fact finder’s report because the court failed to review all of
the evidence considered by the attorney fact finder: a court, on reviewing
a report of an attorney fact finder, must assess all of the evidence that
was presented to the attorney fact finder in order to properly consider
objections challenging the report, and, here, the court could not ade-
quately assess the defendant’s claims that the billing was excessive and
that the quantum of work claimed by the plaintiff did not correlate to
the claimed time expended without reviewing the retainer agreement
and billing record entered as exhibits before the attorney fact finder;
moreover, faced with the fact that these exhibits were missing from the
record, it would have been appropriate for the court to remand the case
to the attorney fact finder or to have taken any other action it deemed
appropriate pursuant to the relevant rule of practice (§ 23-58 (a)).
2. The trial court improperly rendered judgment in accordance with the
report of the attorney fact finder because it was not supported by
sufficient factual findings: the minimal report’s conclusion that the
defendant owed the plaintiff a certain amount of money was not sup-
ported by the sole factual finding that the plaintiff’s representation of
the defendant was partially successful, its statement that exhibits were
entered into evidence by the plaintiff did not constitute a finding as to
the content of those documents, and it did not provide an adequate
factual underlayment for the court’s ultimate determination to accept
it, falling below the bare minimum necessary for the court appropriately
to render judgment; moreover, contrary to the plaintiff’s assertion, this
claim was properly preserved for appellate review, as in her objection
to the report, the defendant, a self-represented party, specifically claimed
that the report’s conclusions were not properly reached on the basis
of various separate grounds and, at the hearing on her objection, the
defendant repeatedly advanced the same arguments that the report’s
conclusions were unsupported.
Argued March 7—officially released July 19, 2022
Procedural History
Action to recover damages for, inter alia, breach of
contract, and for other relief, brought to the Superior
Court in the judicial district of Hartford, where the
matter was referred to Harold M. Levy, attorney fact
finder, who recommended judgment for the plaintiff
on the complaint; thereafter, the court, M. Taylor, J.,
overruled the defendant’s objection to the report and
rendered judgment in accordance with the report, from
which the defendant appealed to this court. Reversed;
judgment directed; further proceedings.
Catherine M. Spain, for the appellant (defendant).
Joseph R. Brennan-Reilly, with whom, on the brief,
was C. Michael Budlong, for the appellee (plaintiff).
Opinion
BISHOP, J. The defendant, Angham Zakko,1 appeals
from the judgment of the trial court, rendered following
a hearing and report by an attorney fact finder, in favor
of the plaintiff, Budlong & Budlong, LLC, on the plain-
tiff’s complaint in the amount of $17,602.50. On appeal,
the defendant claims that the court improperly (1) over-
ruled her objection to the attorney fact finder’s report
because the court failed to review the evidence consid-
ered by the attorney fact finder, and (2) rendered judg-
ment in accordance with the attorney fact finder’s
report because the report contained insufficient factual
findings. We agree with both of the defendant’s claims
and, accordingly, reverse the judgment of the court.
The following facts and procedural history are rele-
vant to our disposition of this appeal. On April 24, 2018,
the plaintiff, a law firm, commenced this action seeking
to collect unpaid fees for legal services it provided to
its former client, the defendant. The plaintiff’s three
count complaint generally alleges that the defendant
retained the plaintiff to represent her in a postjudgment
dissolution proceeding. The complaint alleges that the
parties executed a retainer agreement on December 2,
2016, and that the plaintiff provided the defendant with
legal representation through approximately May 20,
2017. The complaint alleges that the defendant owes
the plaintiff an unpaid balance of $17,201.04 for services
rendered by the plaintiff. The counts in the complaint
against the defendant assert breach of contract, unjust
enrichment, and account stated. On May 18, 2018, the
(then) self-represented defendant filed a form answer
accompanied by a narrative ‘‘[e]xplanation and
answers,’’ in which she explains the history of the par-
ties’ relationship and alleges that the plaintiff over-
charged her for the work it performed.
On August 22, 2019, the court, pursuant to Practice
Book § 23-53,2 issued an order referring the matter to an
attorney fact finder.3 On December 9, 2020, the parties
participated in a hearing before an attorney fact finder.4
At the hearing, the attorney for the plaintiff stated that
‘‘there were two exhibits that were stipulated to, one
is the retainer agreement, and the other is just a bill
for services . . . .’’ The attorney fact finder marked
the retainer agreement as exhibit 1, and the bill for
services as exhibit 2. The plaintiff then elicited testi-
mony from the defendant regarding the parties’ relation-
ship and the purposes for her retention of the plaintiff.
The defendant testified that she hired a private investi-
gator who discovered that the defendant’s ex-husband,
Laith Kasir, had hidden $74,000 in assets during their
marital dissolution proceedings. She testified that she
retained the plaintiff to obtain her portion of those
hidden assets, and that she signed the retainer agree-
ment marked as exhibit 1. The defendant also testified
that she later entered into a postjudgment stipulation
with respect to the hidden assets, which provided that
she would receive the entire $74,000 of the hidden
assets. The defendant finally testified that she received
the bill for services provided by the plaintiff marked
as exhibit 2; although she paid the plaintiff $13,000, it
had been her ‘‘understanding . . . that ten thousand
should take’’ her through the collection of her ex-hus-
band’s assets; and she has refused to pay the full amount
claimed by the plaintiff ‘‘[b]ecause the bills are unrealis-
tic.’’
The hearing before the attorney fact finder continued
by way of the defendant’s testimony in a narrative man-
ner. The defendant testified that, following her divorce
and before she retained the plaintiff, she had hired
an investigator to discover assets she believed her ex-
husband had hidden from her during the dissolution
proceedings and, through that investigator, she had
learned that her ex-husband had a retirement account
with an approximate balance of $74,000. She stated that
she confronted her ‘‘ex-husband’s attorney, and they
wanted to divide that asset.’’ The defendant explained
that she paid the plaintiff $10,000 ‘‘really to get [her]
case resolved and get [her] rightful share’’ of her ex-
husband’s hidden assets as she believed there were
more assets than the $74,000 her investigator had dis-
covered. She testified that she had retained the plaintiff
to discover other assets she believed her ex-husband
had hidden but, instead, she was convinced by the plain-
tiff to settle for receiving the entire proceeds from the
discovered account in lieu of conducting discovery to
uncover further assets. She testified that Attorney
Michael Budlong, an attorney employed by the plaintiff,
overbilled her for meetings with her and was residing
in Florida during the relevant time period. She further
testified that the plaintiff improperly asked for $3000
in addition to the $10,000 she initially provided to
resolve the case, that the stipulation she entered into
to resolve the $74,000 in hidden assets failed to account
for additional stocks her ex-husband possessed, and,
thus, she later had to retain new counsel to obtain those
additional hidden assets. The defendant also testified
that the total amount charged by the plaintiff was
approximately $33,000, of which she paid $13,000. She
claimed that the $33,000 total charged by the plaintiff
was disproportionate to the $35,0005 of her ex-hus-
band’s assets that she actually received, taking into
account the $4000 she independently paid to her investi-
gator.6
On January 14, 2020, the attorney fact finder filed
with the court a brief written report (report) finding in
favor of the plaintiff. The entire report provides: ‘‘On
December 9, 2019, the above captioned parties
appeared for a hearing. The hearing was held and com-
pleted on that date. The following are the findings and
conclusion of this fact finder.
‘‘(1.) This is an action to recover attorney’s fees. [The]
plaintiff introduced two exhibits. Exhibit 1 is the
retainer letter for this representation and Exhibit 2 is
[the] plaintiff’s bill for the services provided showing
a balance due of $16,102.50 plus interest of $4675.54
for a total of $20,778.04.
‘‘(2.) The defendant questioned whether the time
charges were accurate and claimed that she was over-
charged. Although the representation was successful
in getting her some recovery of a portion of the funds
in dispute. I would give the defendant a credit of $2500
on her claims of overcharging.
‘‘Accordingly, I would grant the [plaintiff] . . . the
amount of $13,602.50 in fees plus interest of $4000 for
a total judgment of $17,602.50 in favor of the plaintiff.’’
On January 24, 2020, the defendant, pursuant to Prac-
tice Book § 23-57,7 filed an objection to the attorney
fact finder’s report, raising eight claims of error, and
she attached eight documents to her filing.8 In her objec-
tion, the defendant argued: (1) the report was ‘‘not
properly reached due to lack of evidence’’ because the
attorney fact finder improperly excluded her proffered
exhibits; (2) the report lacked evidence because the bill
submitted by the plaintiff was fabricated as it included
charges for motions that were filed prior to the plain-
tiff’s retention; (3) the parties agreed that $10,000 was
‘‘sufficient to do the work’’; (4) the plaintiff exhausted
the $10,000 payment within the first eight days after
its retention without completing any discovery, asset
location, depositions, or a trial within those eight days;
(5) Attorney Budlong was in Florida and the plaintiff
neglected her case; (6) the attorney fact finder’s finding
that the ‘‘ ‘representation was successful’ ’’ was errone-
ous because she had to pay another attorney to obtain
the full amount of her ex-husband’s assets; (7) she
retained the plaintiff to obtain her ex-husband’s
‘‘$72,000’’ in hidden assets, but that she received a pay-
ment of only ‘‘$32,500’’; and (8) the plaintiff improperly
charged the defendant for the work she performed her-
self, including the investigation and location of the hid-
den assets. The defendant concluded her objection by
stating that these eight grounds show that the report’s
statements, conclusions, and factual findings were not
properly reached. The plaintiff did not file a written
response to the defendant’s objection.
On October 1, 2020, the court, pursuant to Practice
Book § 23-58,9 held a hearing on the defendant’s objec-
tion. At the hearing, both parties initially presented
argument as to the scope of the court’s review of the
report, the basis for the $2500 reduction in fees, and
the several grammatical ambiguities in the report as to
the amount of the judgment. The court preliminarily
stated that it did not ‘‘have any basis to make a ruling
on whether or not the [attorney] fact finder properly
excluded evidence or not,’’ and that it did not ‘‘have a
basis for understanding why [the decision to credit the
defendant $2500] was made.’’ The court, citing Banks
Building Co., LLC v. Malanga Family Real Estate
Holding, LLC, 92 Conn. App. 394, 399, 885 A.2d 204(2005) (Banks), also stated that ‘‘most of what I have
to decide is whether or not I’m going to accept the
[attorney] fact finder’s report. I don’t believe I can do
that with—just with the technical aspects of what’s
been written here. The next opportunity is to reject the
findings of fact and remand the case to the finder who
originally heard the matter.’’ The court further stated
that it is ‘‘obligated to look at the entire record’’ and
that it did not ‘‘have a record of what was said at the
event itself, and I think I really need to look at that to
figure out whether or not there was an evidentiary basis
for the $2500 or if there was a basis for excluding
evidence that was being offered by the [defendant].’’
The court concluded the hearing by indicating its inten-
tion to order and review the transcript of the hearing
before the attorney fact finder to determine whether a
remand to the attorney fact finder was necessary.
On October 19, 2020, the court issued a memorandum
of decision in which it overruled the defendant’s objec-
tion to the report. At the outset, the court noted that
the retainer agreement and bill for services that were
entered into evidence as exhibits 1 and 2 at the hearing
before the attorney fact finder ‘‘are no longer in the
clerk’s possession; however, the court accepts the find-
ings of the [attorney] fact finder, that there was a
retainer agreement and a disputed balance owed, as
agreed upon by the parties. The defendant’s essential
claim is that the plaintiff overbilled her for the services
rendered.’’ The court noted also that ‘‘[a] transcript of
the [attorney] fact finder proceeding was made a court
exhibit in this case,’’ thereby implying that the court
reviewed the transcript corresponding to the hearing
before the attorney fact finder. The court concluded
that, ‘‘although errors were made in preserving an accu-
rate record of the evidence submitted by both parties,
the decision of the [attorney] fact finder in favor of the
plaintiff was well grounded in the law of contract and
the evidence presented. Further, although the defen-
dant had no defenses to the plaintiff’s claim, the [attor-
ney] fact finder nonetheless credited the defendant with
$2500 in overcharges. During her testimony, for exam-
ple, she identified instances where she had been billed
excessively for actual time that was spent on her file.
Absent a formally filed defense and based upon her
general testimony of being overbilled, the court finds
that the credit of $2500 is not clearly erroneous.’’10 The
court, in accordance with the report, rendered judgment
in favor of the plaintiff in the amount of $17,602.50.
This appeal followed.
On December 10, 2020, during the pendency of this
appeal, the defendant filed a motion for articulation
representing that counsel for the plaintiff provided her
with both exhibits 1 and 2, which were ‘‘missing’’ from
the clerk’s office. On the basis of this recent discovery,
the defendant asked the trial court to articulate, inter
alia, whether the court viewed exhibits 1 and 2 intro-
duced at the hearing before the fact finder before it
affirmed the report. On April 12, 2021, the court issued
an articulation acknowledging that it had not viewed
exhibits 1 and 2, which had been entered into evidence
before the attorney fact finder, but were absent from
the record on the court’s review of the report.11
On appeal, the defendant claims that the court
improperly (1) overruled her objection to the attorney
fact finder’s report because the court failed to review
the evidence considered by the attorney fact finder, and
(2) rendered judgment in accordance with the attorney
fact finder’s report because the report contained insuffi-
cient factual findings.
Because both of the defendant’s claims challenge the
actions taken by both the attorney fact finder and the
court, we first outline the parameters of the attorney
fact finder process and the applicable standards of
review. Subject to certain conditions, a court may refer
a matter to an attorney fact finder to hear and decide
issues of fact in contract actions pending in the Superior
Court when the amount in controversy is less than
$50,000. See Practice Book § 23-53; see also General
Statutes § 52-549n. An attorney fact finder shall proceed
to determine the matter submitted to them, a record
shall be made of the proceedings before the attorney
fact finder, and the rules of evidence shall apply. See
Practice Book § 23-55;12 see also General Statutes § 52-
549r. An attorney fact finder’s report shall be in writing,
state in separate and consecutively numbered para-
graphs the facts found and the conclusions drawn there-
from, include the days the hearing took place, be signed
by the attorney fact finder, and be filed with the clerk’s
office within 120 days of the completion of the hearing.
See Practice Book §§ 19-8 and 23-56; see also General
Statutes § 52-549r. Within fourteen days after the filing
of the report, a party may file objections to the report
on the grounds that conclusions of fact stated in it were
not properly reached on the basis of the subordinate
facts found, that the fact finder erred in rulings on
evidence or in other rulings, or that there are other
reasons why the finding of facts should not be accepted.
See Practice Book § 23-57; see also General Statutes
§ 52-549s.
When presented with an objection to an attorney fact
finder report, a trial court must hold a hearing on the
objection. See Practice Book § 23-58; see also General
Statutes § 52-549s. The trial court then has six discre-
tionary options; it can ‘‘(1) render judgment in accor-
dance with the finding of facts; (2) reject the finding
of facts and remand the case to the fact finder who
originally heard the matter for a rehearing on all or part
of the finding of facts; (3) reject the finding of facts
and remand the matter to another fact finder for rehear-
ing; (4) reject the finding of facts and revoke the refer-
ence; (5) remand the case to the fact finder who origi-
nally heard the matter for a finding on an issue raised
in an objection which was not addressed in the original
finding of facts; or (6) take any other action the judicial
authority may deem appropriate.’’ Practice Book § 23-
58; see also General Statutes § 52-549s.
When assessing the factual findings and legal conclu-
sions of the attorney fact finder, the trial court is
required to use different standards of review. The trial
court is required to use the clearly erroneous standard
of review to assess the attorney fact finder’s factual
findings. ‘‘The factual findings of [an attorney fact
finder] on any issue are reversible only if they are clearly
erroneous. . . . [A reviewing court] cannot retry the
facts or pass upon the credibility of the witnesses. . . .
A finding of fact is clearly erroneous when there is no
evidence in the record to support it . . . or when
although there is evidence to support it, the reviewing
court on the entire evidence is left with the definite and
firm conviction that a mistake has been committed.’’
(Internal quotation marks omitted.) Shapero v. Mercede,
262 Conn. 1, 6, 808 A.2d 666 (2002). As to any legal
conclusions made by the attorney fact finder, the trial
court, on review, is required to apply the plenary stan-
dard of review to assess the attorney fact finder’s legal
conclusions. ‘‘[B]ecause the attorney [fact finder] does
not have the powers of a court and is simply a fact
finder, [a]ny legal conclusions reached by an attorney
[fact finder] have no conclusive effect. . . . The
reviewing court is the effective arbiter of the law and
the legal opinions of [an attorney fact finder], like those
of the parties, though they may be helpful, carry no
weight not justified by their soundness as viewed by
the court that renders judgment.’’ (Internal quotation
marks omitted.) Silver Hill Hospital, Inc. v. Kessler,
200 Conn. App. 742, 747, 240 A.3d 740 (2020). With these
principles in mind, we turn to the claims presented in
this appeal.
I
The defendant first claims that the court improperly
overruled her objection to the attorney fact finder’s
report because the court failed to review all of the
evidence considered by the attorney fact finder. We
agree.
We begin with the standard of review and legal princi-
ples relevant to the defendant’s first claim. This claim
requires us to determine whether the court employed
the proper standard of review in assessing the fact
finder’s report and, thus, we exercise plenary review.
See Lewis v. Frazao Building Corp., 115 Conn. App.
324, 333, 972 A.2d 284 (2009) (applying plenary review
to claim as to ‘‘whether the court employed the proper
standard of review in assessing the fact finder’s
report’’); see also State v. Manuel T., 337 Conn. 429,
453, 254 A.3d 278 (2020) (whether trial court applied
proper legal standard is subject to plenary review on
appeal). To the extent we are required to interpret the
defendant’s objection to the report, our review also is
plenary. See BNY Western Trust v. Roman, 295 Conn.
194, 210, 990 A.2d 853 (2010) (interpretation of plead-
ings is question of law subject to plenary review).
In Banks Building Co., LLC v. Malanga Family Real
Estate Holding, LLC, supra, 92 Conn. App. 394, this
court articulated the proper process for a trial court’s
review of an attorney fact finder’s report. In Banks,
the defendant claimed on appeal that the trial court
improperly rendered judgment in accordance with the
attorney fact finder’s report without first holding a hear-
ing on the defendant’s objections. Id., 397. This court
agreed with the defendant, holding that the ‘‘plain lan-
guage’’ of Practice Book § 23-58 ‘‘indicates that if any
objections to the report have been raised, the court,
before deciding on one of the available courses of
action, must take the mandatory prerequisite step of
holding a hearing on the objections.’’ Id., 398–99. Addi-
tionally, ‘‘[t]here is no per se requirement that a court
review the transcripts of the hearing before the [attor-
ney] fact finder prior to rendering judgment on the
[attorney] fact finder’s report. . . . When an objection
raises the claim, however, that the facts found lack
evidentiary support, the court must review all of the
evidence that was before the fact finder to make an
informed disposition of the objection.’’ (Citation omit-
ted; emphasis added.) Id., 399; see also Dartmoor Con-
dominium Assn., Inc. v. Guarco, 111 Conn. App. 566,
572–73, 960 A.2d 1076 (2008) (holding that trial court’s
in camera review of party’s objection to attorney fact
finder’s report did not satisfy Banks standard).
Accordingly, a trial court must hold a hearing and
assess all of the evidence necessary to consider prop-
erly the particular objections raised by a party to a
report of an attorney fact finder. Particularly, where a
trial court is presented with an objection challenging
the factual findings of a report, it must review all the
evidence before the attorney fact finder to determine
whether those findings are clearly erroneous. See Silver
Hill Hospital, Inc. v. Kessler, supra, 200 Conn. App.
746–47; see also Sclafani Properties, LLC v. Sport-N-
Life Distributing, LLC, 198 Conn. App. 292, 301–302,
233 A.3d 1285 (2020). Where a trial court is presented
with an objection challenging the attorney fact finder’s
exclusion of evidence at the hearing, it must necessarily
review the exhibits that were excluded. See Silver Hill
Hospital, Inc. v. Kessler, supra, 747; see also Data-Flow
Technologies, LLC v. Harte Nissan, Inc., 111 Conn.
App. 118, 130–31, 958 A.2d 195 (2008). Where a trial
court is presented with an objection challenging the
legal conclusions of a report, it must determine whether
those conclusions are legally and logically correct and
supported by the findings of fact in the report. See
Silver Hill Hospital, Inc. v. Kessler, supra, 747.
As noted, the defendant’s objection to the report
made eight claims of error, specifically challenging the
attorney fact finder’s factual findings and resultant legal
conclusions. The defendant challenged, inter alia, the
amount that the parties’ agreed to in the retainer agree-
ment submitted as exhibit 1 at the attorney fact finder
hearing, the propriety of the charges on the bill submit-
ted as exhibit 2 at the attorney fact finder hearing, the
evidentiary support for the finding that the plaintiff’s
‘‘representation was successful,’’ and the lack of corre-
lation between the plaintiff’s charges and the work actu-
ally performed. In reaching its conclusion to accept the
attorney fact finder’s report, however, the court did not
examine the retainer agreement and the billing state-
ment because they were not part of the record and,
consequently, the court was in no position to determine
the merits of the defendant’s objection. Therefore, the
court could not properly consider whether the parties
had agreed to a capped fee in the retainer agreement
or whether the plaintiff’s billing statement accurately
reflected the quantum of work performed on behalf of
the defendant. In light of these circumstances, the court
should have exercised its discretion to remand the case
back to the attorney fact finder or to ‘‘take any other
action the judicial authority may deem appropriate.’’
Practice Book § 23-58 (a); see also General Statutes
§ 52-549s.
In response, the plaintiff argues that the court’s fail-
ure to review the evidence before the fact finder was
immaterial for two reasons. First, the plaintiff argues
that ‘‘the defendant never raised a claim that the parties
had agreed to a bargained for, capped fee of $10,000’’
before the attorney fact finder, and, second, the defen-
dant’s objection to the report was confined only to the
attorney fact finder’s improper exclusion of the exhibits
that she had attempted to present to the attorney fact
finder at the hearing. We reject the plaintiff’s narrow
construction of the defendant’s arguments, which she
made as a self-represented party before the attorney
fact finder and the court.13
First, the nature of the defendant’s objection to the
attorney fact finder’s report required the court to review
both the retainer agreement and the billing record to
properly and fairly assess the defendant’s claims that
the billing was excessive and the quantum of work
claimed by the plaintiff did not correlate to the claimed
time expended. Both of these claims implicate the accu-
racy and completeness of exhibits 1 and 2 that were
presented to the attorney fact finder but were unavail-
able to the trial court. In the documents that the defen-
dant submitted in response to the plaintiff’s complaint,
the defendant raised both of these claims: that the bill-
ing was excessive and that counsel’s performance had
not been as promised. At the hearing before the attorney
fact finder, the defendant repeatedly testified that the
parties had agreed that her $10,000 payment was suffi-
cient to take care of her case. All of this was adequate
for the defendant to place the plaintiff and the attorney
fact finder on notice of her capped fee claim.
Second, the defendant’s objection was not limited to
her claim regarding the attorney fact finder’s improper
exclusion of documents that she had sought to intro-
duce as evidence before the attorney fact finder. As
previously outlined, the defendant’s objection to the
report expressly made eight challenges to, inter alia,
the amounts charged for the work performed by the
plaintiff and the amount to which the parties agreed
for the representation.
In sum, we reiterate that a court, on reviewing a
report of an attorney fact finder, must assess all of the
evidence that was presented to the attorney fact finder
in order to properly consider objections challenging the
report of an attorney fact finder. In our view and on
the basis of this record, we conclude that the court
could not adequately assess the defendant’s objections
without reviewing both exhibit 1, the retainer agree-
ment, and exhibit 2, the billing record. Faced with the
fact that these exhibits were missing from the record,
it would have been appropriate for the court to remand
the case to the attorney fact finder or to ‘‘take any other
action the judicial authority may deem appropriate.’’
Practice Book § 23-58 (a); see also General Statutes
§ 52-549s. In this case, as soon as the court determined
that these documents, necessary to its review function,
were missing from the record, it should have remanded
the matter to the attorney fact finder for the purpose
of completing the record and, then, with a complete
record, the court could have conducted its review.
Because that procedure did not take place, the matter
must be remanded to the trial court.
II
The defendant next claims that the court improperly
affirmed the attorney fact finder’s report because it
contained insufficient factual findings to support its
ultimate conclusion.14 In support, the defendant argues
that ‘‘[t]he sole ‘fact found’ in the entire report’’—that
the plaintiff’s representation was successful—‘‘is insuf-
ficient to sustain a legal conclusion that the [retainer
agreement] was valid and enforceable for the amount
billed . . . .’’ The plaintiff does not advance a substan-
tive counterargument to support the report; rather, the
plaintiff argues only that this court should decline to
review this argument because the defendant failed to
preserve it properly before the trial court. We conclude
that the defendant’s claim was properly preserved and
that the court improperly affirmed the report.
We begin by setting forth the legal principles relevant
to whether a claim properly was preserved for appellate
review. ‘‘It is well settled that [o]ur case law and rules
of practice generally limit [an appellate] court’s review
to issues that are distinctly raised at trial. . . . [O]nly
in [the] most exceptional circumstances can and will
this court consider a claim, constitutional or otherwise,
that has not been raised and decided in the trial court.
. . . The reason for the rule is obvious: to permit a
party to raise a claim on appeal that has not been raised
at trial—after it is too late for the trial court or the
opposing party to address the claim—would encourage
trial by ambuscade, which is unfair to both the trial
court and the opposing party.’’ (Internal quotation
marks omitted.) Chief Disciplinary Counsel v. Roz-
bicki, 326 Conn. 686, 695, 167 A.3d 351 (2017), cert.
denied, U.S. , 138 S. Ct. 2583, 201 L. Ed. 2d 295(2018); see also Practice Book § 60-5 (‘‘court shall not
be bound to consider a claim unless it was distinctly
raised at the trial or arose subsequent to the trial’’).
‘‘[T]he determination of whether a claim has been prop-
erly preserved will depend on a careful review of the
record to ascertain whether the claim on appeal was
articulated below with sufficient clarity to place the
trial court [and the opposing party] on reasonable notice
of that very same claim.’’ (Internal quotation marks
omitted.) Alpha Beta Capital Partners, L.P. v. Pursuit
Investment Management, LLC, 193 Conn. App. 381,
455, 219 A.3d 801 (2019), cert. denied, 334 Conn. 911,
221 A.3d 446 (2020), and cert. denied, 334 Conn. 911,
221 A.3d 446 (2020). Furthermore, our interpretation of
the defendant’s pleadings is a question of law subject
to plenary review. See BNY Western Trust v. Roman,
supra, 295 Conn. 210. As stated herein, consistent with
our policy of leniency to self-represented litigants, we
construe the plaintiff’s pleadings broadly and realisti-
cally, rather than narrowly and technically. See Santana
v. Commissioner of Correction, 208 Conn. App. 460,
465, 264 A.3d 1056 (2021), cert. denied, 340 Conn. 920,
267 A.3d 857 (2022).
In her objection to the report, the defendant specifi-
cally claimed that the report’s ‘‘conclusions’’ were not
properly reached on the basis of eight separate grounds.
At the hearing on her objection, the defendant, still a
self-represented party, repeatedly advanced the same
arguments that the report’s conclusions were unsup-
ported. At the hearing, the court itself acknowledged
that the report was devoid of a basis for its conclusions
and stated that it did not think that it could affirm the
report ‘‘just with the technical aspects of what’s been
written here.’’ We conclude from our broad review of
the defendant’s claims that she properly preserved her
claim before the court that the conclusion by the report
was unsupported by sufficient factual findings. We now
turn to consider the claim on the merits.
We next outline our standard of review and the appli-
cable legal principles to determine whether the court
properly rendered judgment in accordance with the
attorney fact finder’s report. The trial court’s determina-
tion to render judgment in accordance with the fact
finder’s report is a question of law subject to plenary
review. See Silver Hill Hospital, Inc. v. Kessler, supra,
200 Conn. App. 747. ‘‘[O]ur review is limited to whether
the trial court’s legal conclusions are legally and logi-
cally correct and whether they find support in the facts
set out in the memorandum of decision.’’ Id., 751.
‘‘When a matter is referred to [an attorney] fact finder,
Practice Book § 23-56 (a) mandates that findings of fact
be set forth in writing . . . . The fact finder’s report
shall state, in separate and consecutively numbered
paragraphs, the facts found and the conclusions drawn
therefrom.’’ (Internal quotation marks omitted.) Data-
Flow Technologies, LLC v. Harte Nissan, Inc., supra,111 Conn. App. 127. ‘‘This court has repeatedly stated
that it is the function of a finding to state facts and not
evidence. . . . A finding that certain testimony was
given does not establish the truth of the facts testified
to. . . . A finding should state ultimate, not evidential,
facts . . . .’’ (Citations omitted; internal quotation
marks omitted.) Post Road Iron Works, Inc. v. Lexing-
ton Development Group, Inc., 54 Conn. App. 534, 541,
736 A.2d 923 (1999). ‘‘In cases involving [attorney] fact
finders . . . the report submitted to the trial court
must include sufficient facts to support a recommenda-
tion. The court cannot appropriately render judgment
in accordance with facts found but not communicated.
. . . Although the referral of cases to fact finders is
intended to create more streamlined access to justice,
fact finders must take care with their responsibility of
finding facts to which the courts may apply the law.’’
(Citation omitted; emphasis in original.) Data-Flow
Technologies, LLC v. Harte Nissan, Inc., supra, 128–29.
‘‘We caution fact finders to avoid the confusion that
comes from drawing conclusions without expressly
finding each subordinate fact.’’ Id., 129 n.8.
In Post Road Iron Works, Inc. v. Lexington Develop-
ment Group, Inc., supra, 54 Conn. App. 542, this court
concluded that the trial court improperly affirmed the
report of an attorney trial referee15 because it contained
insufficient factual findings. The relevant report was
five pages, contained seven findings of fact, and had
separate sections for discussion and recommendations.
Id., 537. The defendants objected to the report on sev-
eral grounds, but the trial court overruled the defen-
dants’ objection and accepted the attorney trial refer-
ee’s report. Id., 538–40. On appeal, this court reversed
the judgment of the trial court, reasoning that ‘‘the attor-
ney trial referee made just seven findings of fact, one
of which merely describes photographic evidence. In
the discussion portion of his report, the attorney trial
referee summarizes the testimony of the witnesses with-
out making findings of fact.’’ Id., 541. This court further
held that ‘‘the trial court drew inferences from the attor-
ney trial referee’s report and entered them as factual
findings in its memorandum of decision. This, the trial
court may not do. The trial court may accept an attorney
trial referee’s report only when the recommendation is
supported by the attorney referee’s subordinate find-
ings of fact. We conclude, therefore, that the trial court
improperly accepted the attorney trial referee’s report.’’
(Footnote omitted.) Id., 542; contra Data-Flow Technol-
ogies, LLC v. Harte Nissan, Inc., supra, 111 Conn. App.
129 (holding that attorney fact finder’s two reports
cumulatively containing ten factual findings supplied
‘‘the bare minimum necessary for the court to render
judgment appropriately’’).
The report in the present case falls below the bare
minimum necessary for the court appropriately to ren-
der judgment. The report is only one-half page long and
contains only one factual finding. In the first paragraph,
the report identifies the date of the hearing. In the
second paragraph, the report describes the two exhibits
introduced by the plaintiff and states that the plaintiff’s
‘‘bill for the services provided [showed] a balance due
of $16,102.50 plus interest of $4,675.54 for a total of
$20,778.04.’’ In the third paragraph, the report states that
‘‘[t]he defendant questioned whether the time charges
were accurate and claimed that she was overcharged,’’
finds that ‘‘the representation was successful in getting
her some recovery of a portion of the funds in dispute,’’
and then concludes that the attorney fact finder ‘‘would
give the defendant a credit of $2500 on her claims of
overcharging.’’ The report concludes by stating that the
attorney fact finder grants ‘‘the [plaintiff] . . . the
amount of $13,602.50 in fees plus interest of $4000 for
a total judgment of $17,602.50 in favor of the plaintiff.’’
The report’s conclusion that the defendant owes the
plaintiff $17,602.50 is not supported by the sole factual
finding that the plaintiff’s representation was partially
successful. The report’s statement that exhibits were
entered into evidence by the plaintiff does not consti-
tute a finding as to the content of those documents. See
Post Road Iron Works, Inc. v. Lexington Development
Group, Inc., supra, 54 Conn. App. 541. This minimal
report by the attorney fact finder did not provide an
adequate factual underlayment for the court’s ultimate
determination to accept it. Therefore, we conclude that
the court improperly rendered judgment in accordance
with the report because it was not supported by suffi-
cient factual findings.
The judgment is reversed and the case is remanded
with direction to render judgment rejecting the report
and for further proceedings consistent with this opin-
ion.
In this opinion the other judges concurred.
1
The defendant was not represented by counsel for the entirety of the
underlying action, including the proceedings before the attorney fact finder.
The defendant is represented by counsel in this appeal.
2
Practice Book § 23-53 provides in relevant part that ‘‘[t]he court, on its
own motion, may refer to a fact finder any contract action pending in the
Superior Court . . . . Such cases may be referred to a fact finder only after
the pleadings have been closed, a certificate of closed pleadings has been
filed, and the time prescribed for filing a jury trial claim has expired.’’
3
The court’s referral to the attorney fact finder was prompted by the
plaintiff’s August 22, 2019 caseflow request, which stated that ‘‘[a]t the last
appearance, the parties agreed to utilize the [Connecticut Bar Association’s]
dispute resolution program however, the [Connecticut Bar Association] does
not allow participation in said program if a lawsuit is already pending. [The]
defendant has not responded to [the] plaintiff’s request for consent.’’
4
At the inception of the hearing, the attorney fact finder outlined a concern
that the pleadings were not closed because the plaintiff had filed a motion
to strike the defendant’s answer, which was not decided at the time of the
hearing. See Practice Book § 23-53 (prescribing that referral to attorney fact
finder can occur ‘‘only after the pleadings have been closed’’). This issue
was not affirmatively resolved on the record before the attorney fact finder
and was not presented as an issue before the trial court.
5
There is no explanation in the record for the mathematical discrepancy
between the slightly differing sums the defendant claimed she received from
her ex-husband, and the slightly differing amounts representing the hidden
assets she claimed her investigator had found for which she settled while
represented by the plaintiff.
6
At the conclusion of the hearing before the attorney fact finder, the
defendant attempted to introduce into evidence a series of e-mails between
the parties, a report of the private investigator, and other documents to
support her defenses. The plaintiff objected to all of these exhibits as inad-
missible on the grounds of hearsay, relevancy, and as communications
regarding a settlement negotiation. The attorney fact finder sustained all of
the plaintiff’s objections to these exhibits. In her objection to the report,
the defendant claimed that it was error for the attorney fact finder not to
have admitted those exhibits into evidence. Notwithstanding, the trial court
stated in its decision that it had reviewed certain of the defendant’s docu-
ments as part of its assessment of the report, and the court concluded that
‘‘whether admitted or excluded . . . [these exhibits do] not constitute a
legal defense to the plaintiff’s claim.’’ On appeal to this court, the defendant
makes no specific claim in regard to this set of exhibits.
7
Practice Book § 23-57 (a) provides: ‘‘A party may file objections to the
acceptance of a finding of facts on the ground that conclusions of fact stated
in it were not properly reached on the basis of the subordinate facts found,
or that the fact finder erred in rulings on evidence or in other rulings, or
that there are other reasons why the finding of facts should not be accepted.’’
8
Although the court discussed certain of these documents in its decision,
the defendant has not specifically raised any issue regarding the court’s
treatment of these documents on appeal. Accordingly, they warrant no
further discussion.
9
Practice Book § 23-58 provides: ‘‘(a) After review of the finding of facts
and hearing on any objections thereto, the judicial authority may take the
following action: (1) render judgment in accordance with the finding of
facts; (2) reject the finding of facts and remand the case to the fact finder
who originally heard the matter for a rehearing on all or part of the finding
of facts; (3) reject the finding of facts and remand the matter to another
fact finder for rehearing; (4) reject the finding of facts and revoke the
reference; (5) remand the case to the fact finder who originally heard the
matter for a finding on an issue raised in an objection which was not
addressed in the original finding of facts; or (6) take any other action the
judicial authority may deem appropriate.
‘‘(b) The judicial authority may correct a finding of facts at any time
before accepting it, upon the written stipulation of the parties.
‘‘(c) The fact finder shall not be called as a witness, nor shall the decision
of the fact finder be admitted into evidence at another proceeding ordered
by a judicial authority.’’
10
In contrast to the court’s statements, the defendant did file a formal
defense to the plaintiff’s complaint by way of her answer, and the plaintiff
never objected to the attorney fact finder’s report seeking to challenge the
$2500 credit provided to the defendant.
11
On December 11, 2020, the defendant filed a motion for rectification,
pursuant to Practice Book § 66-5, seeking that the court include in the record
for appeal ‘‘the missing plaintiff’s exhibits 1 and 2 so that they are made
part of the court file.’’ On April 12, 2021, the court issued a rectification
stating that, ‘‘[a]lthough exhibits 1 and 2 were accepted into evidence at
[the attorney] fact finder hearing, they were not found in the court’s file at
the time of the appeal. In reviewing the evidence folder for this matter on
April 8, 2021, the court concludes that they are either no longer in the court’s
possession or have been improvidently misfiled. In light of this circumstance,
the court has no objection to the rectification of the court’s file to include
exhibits 1 and 2.’’ The court then conditioned its rectification on the agree-
ment of the parties, stating that ‘‘[t]he parties appear to agree that the
submitted documents are accurate copies of the exhibits, as filed with the
fact finder. If this is incorrect, either party may seek a hearing to establish
the fact that these documents are accurate copies of exhibits 1 and 2.’’
Neither party has sought such a hearing with the trial court. We offer no
opinion on this process except to note generally that a motion for rectifica-
tion ‘‘cannot be used to add new matters to the record that were not presented
at trial.’’ (Emphasis added; internal quotation marks omitted.) State v.
Walker, 319 Conn. 668, 680, 126 A.3d 1087 (2015).
12
Practice Book § 23-55 was amended, effective January 1, 2021, to replace
the phrase ‘‘civil rules of evidence’’ with the phrase ‘‘Connecticut Code of
Evidence.’’ This technical change has no bearing on our analysis.
13
Consistent with our policy of leniency to self-represented litigants, we
construe the defendant’s arguments and objection, which she made as a
self-represented party, broadly and realistically, rather than narrowly and
technically. See Santana v. Commissioner of Correction, 208 Conn. App.
460, 465, 264 A.3d 1056 (2021), cert. denied, 340 Conn. 920, 267 A.3d 857(2022).
14
Although our resolution of the defendant’s first claim is dispositive of
this appeal, we also address the defendant’s second claim because it is
likely to arise on remand. See, e.g., State v. Raynor, 337 Conn. 527, 552,
254 A.3d 874 (2020) (addressing ‘‘the defendant’s second claim because it
is likely to arise on remand’’); State v. Lebrick, 334 Conn. 492, 521, 223 A.3d
333 (2020) (addressing ‘‘the merits of the defendant’s second claim . . .
because it is likely to arise on remand’’); Sullivan v. Metro-North Commuter
Railroad Co., 292 Conn. 150, 164 n.8, 971 A.2d 676 (2009) (‘‘[w]e think it
prudent to address the second issue because it is likely to arise on remand’’).
15
For purposes of our review, there is no material distinction between
an attorney fact finder and an attorney trial referee as both ‘‘share the same
function . . . whose determination of the facts is reviewable in accordance
with well established procedures prior to the rendition of judgment by the
court.’’ (Internal quotation marks omitted.) Killion v. Davis, 257 Conn. 98,
102, 776 A.2d 456 (2001).